Security and Human Rights

The threat of terrorism dominated the state of human rights in Canada in the latter part of 2001. Parliament approved anti-terrorism legislation and, at the end of the year, was considering a Public Safety Act allowing designated security zones controlled by the military. New immigration and refugee legislation was adopted that, in many respects, restricted human rights more than the previous law. Early in 2002, the Supreme Court of Canada decided that security considerations could, in certain limited circumstances, justify deporting someone to a country where they face torture.

Viewed separately, and in light of September 11, these measures might be seen as relatively benign — a reasonable price to pay for an increased sense of safety. However, with each incremental measure, our cherished human rights are narrowed a little more. The cumulative result may be a Canada where Canadians feel safer in the short term but in the longer term does damage to the human rights foundation on which the country is built.

It was just this concern that the Chief Commissioner stated when she appeared before the House of Commons Standing Committee on Justice and Human Rights examining the Anti-Terrorism Act (Bill C-36), which was subsequently passed into law. She recognized that the Government must guard against the threat of terrorism, but stressed that any legislation must be fully consistent with international human rights standards and with the Charter of Rights and Freedoms. She indicated to the Committee, “in our haste to introduce new measures to counter terrorism, we must not put in place measures that exceed this aim and jeopardize human rights. Let’s fight back against terrorism and bring the guilty to justice but let us not endanger the innocent in our haste or abandon the very rights and freedoms which are the terrorist’s target.”

The Government assured Canadians that Bill C-36 and other legislation intended to tighten security balanced the need to respond to terrorism with the need to preserve rights and freedoms. But as the Chief Commissioner asked the Committee “are we getting enough additional security from the additional powers to justify these encroachments on human rights?”

In the Commission’s view, in many important respects, the answer was no. Foremost among the difficulties with Bill C-36 was the definition of terrorism. The Commission, along with many other witnesses, expressed concern that the broad and rather vague definition of terrorism proposed by the Government might be misused to quash legitimate dissent. Given the extraordinary police powers granted by the legislation, this was particularly worrisome.

A second major issue from a human rights perspective was provisions dealing with preventive detention. The Commission’s fears were heightened because the new powers of preventive arrest under Bill C-36 relied upon an overly broad definition of terrorism, and were combined with amendments to the Evidence Act that allowed greater scope to withhold evidence because of national security interests.

The Commission also highlighted the need for a sunset clause. Bill C-36 is strong and untried medicine that one hopes will not always be required. That is why the Commission, along with others, urged the Government to provide a three-year sunset clause on those parts of the Bill that have the highest risk of infringing on human rights.

To its credit, before the Bill became law at the end of 2001, the Government did respond to some of the concerns raised by the Commission and by many others. It tightened the definition of terrorism, added some procedural safeguards, and allowed opportunities for judicial oversight. The requirement for a limited review, while welcome, was not a true sunset clause — it allowed the legislation’s most difficult parts to be extended without the level of Parliamentary scrutiny that re-introduced legislation would require. The period was longer than that advocated by the Commission and many others. The Government also amended the legislation to include annual reports to Parliament on the implementation of Bill C-36. The Commission hopes that these annual reports will highlight the instances where preventive detention is used, where persons are detained without criminal charges, or where racial profiling occurs.

The new law includes some positive features. For one, it confirms that the Commission has jurisdiction over hate messages transmitted by the Internet. A lack of clarity on this issue in the past hampered the Commission’s efforts to combat hatred on the Net, such as the web site of Ernst Zündel and others of its ilk. Provisions authorizing the courts to shut down Internet sites pending a determination of whether their material constitutes hate under the criminal law will be another important tool to combat hatred. A new offence regarding the desecration of churches, mosques, temples, and synagogues makes clear the deep revulsion that Canadians hold for those who commit such crimes.

Notwithstanding these positive elements, the Act still places significant restraints on civil liberties that prior to September 11 were unknown in Canada.

At the end of the year, the Government introduced additional security legislation — the Public Safety Act (Bill C-42) — which raised more anxieties about the need to balance fundamental rights with security interests. Of particular worry was a provision of the Bill that would allow the Minister of Defence to declare certain areas, even in major cities, as security zones, thereby curtailing the right of peaceful assembly and protest.

No doubt some of these restraints will be challenged in the courts, as they should be, in order to determine if they are, in the words of the Charter, “demonstrably justified in a free and democratic society.” But much more is needed than ensuring the legislation does not actively violate the Charter. Of equal importance are measures to make citizens aware of their rights and how to protect them.

In this context, the Commission called on the Government to follow the new legislation with additional programs and other measures to better educate the general public and law enforcement officials about human rights.

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